States File Legal Challenge to Nuclear Waste Security Review

May 24, 2013

By Douglas P. Guarino

Global Security Newswire

WASHINGTON – A group of state governments has filed legal action against the U.S. Nuclear Regulatory Commission, saying the scope of an agency review on the impacts of leaving radioactive waste at nuclear power plants sites indefinitely is not as broad as a federal court has mandated.

Spent nuclear fuel has been piling up at reactor sites around the country. Last year, a federal appeals court sided with the states of New York, Connecticut, Massachusetts and Vermont, which argued the commission had wrongly assumed the fuel would eventually move to a permanent waste repository, even though plans for such a disposal site remain uncertain.

The commission had based its “confidence” that waste would be securely disposed on the existence of the controversial Yucca Mountain project, which the Obama administration has since canceled, the lawsuit argued.

In the absence of a repository, the federal appeals court in New York v. NRC ruled that the commission must examine the potential consequences of fires in spent fuel pools at reactor sites – a scenario plaintiffs argued could result from acts of terrorism. Critics have complained that the pools are located outside reactors’ containment structure, and in some cases are located in an elevated area they claim is more susceptible to air attacks.

Since the ruling, the commission has suspended all licensing proceedings for nuclear power plants until it can complete a court-ordered review of the environmental impacts of leaving the waste at the reactor sites and can determine it still has “confidence” the material will be secure. In a legal petition filed with the commission on Thursday, the states said the manner in which the NRC staff is conducting this review violates the terms of the 2012 court decision.

The petition notes that NRC staff has refused to consider the possibility of forbidding the creation of additional waste through reactor operations until a repository is constructed – an option the states said the court “explicitly recognized to be reasonable." Commission staff also has declined to look at the potential for requiring plant operators to move spent fuel that has already been cooling in pools for more than five years into dry cask storage units that the states say are more secure.

“Although staff may believe there is no environmental impact difference between spent fuel that is closely packed and stored in pools and spent fuel that is placed in dry cask storage once it is five years old, there is ample and technically competent disagreement with that conclusion,” the petition says, pointing to a paper Allison Macfarlane, now the NRC chairwoman, co-authored on the issue in 2003 as an example.

States and watchdog groups had already submitted formal comments to the NRC staff arguing that the two refusals violated the court ruling. Thursday’s petition elevates the issue to the five presidentially appointed commissioners themselves.

“The commission has inherent supervisory authority over the staff and should act now in furtherance of the commission’s stated goal of resolving proceedings expeditiously,” the states say in the petition. Nuclear Regulatory Commission responses to such petitions are often challenged in court.

The NRC staff has argued that it is already considering the possibility of requiring fuel to be moved into dry cask storage units as part of a separate rulemaking operating under a slower timetable. The states argue, however, that legally the NRC staff cannot complete its review of the waste confidence issue until the dry cask component is addressed and note that waiting for the separate rulemaking to be complete would likely make it difficult to finish its review of the waste confidence issue within the agency’s two-year time frame.

In addition, the states argue that the separate rulemaking the NRC staff cites is focused only on spent fuel storage installations that are independent of nuclear power plants. It “thus appears to ignore the many environmental impacts at over 100 reactor sites that may occur as a result of accidental releases from spent fuel pools, or fires at spent fuel pools, and it also appears to ignore the environmental and economic impacts of the continued use of a reactor site for waste storage for a long-term or indefinite period after a reactor has shut down,” the petition says.

This report is part of a collection examining implementation of United Nations Security Council Resolution 1540, which requires all states to implement measures aimed at preventing non-state actors from acquiring NBC weapons, related materials, and their means of delivery. It details implementation efforts in Central America, South America and the Caribbean to-date.